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Massachusetts Civil Procedure Rule 65.1: Security: Proceedings Against Sureties

[Disclaimer]

Whenever these rules require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the sureties if their addresses are known.

Effective July 1, 1974

Reporters' Notes (1973) Rule 65.1 effects a substantial change in former Massachusetts practice. Formerly, a party who took a bond as security had to institute a separate action in contract to enforce the obligation of the sureties to the bond. Castaline v. Swardlick, 264 Mass. 481, 482, 163 N.E. 62 (1928). Rule 65.1, providing for enforcement on motion makes unnecessary the costly and lengthy process of a second civil suit. The rule provides for notice to those whose obligations are sought to be enforced. G.L. c. 214, § 9A clauses 2 and 3, requires that an undertaking be filed with the court when a preliminary injunction is issued in a labor dispute. A decree may be rendered upon such undertaking in the suit for the injunction; no second suit is necessary. The statute further states that the complainant and surety submit themselves to the jurisdiction of the court for the purpose of such undertaking. Both provisions accord with Rule 65.1.

That portion of Rule 65.1 providing that "each surety submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom papers affecting his liability on the bond or undertaking may be served" does not substantially change former law. Apart from specific statutory provisions, one who undertakes to be a surety on a bond is subject to process (to enforce the obligation) by virtue of his being an inhabitant of the Commonwealth or by virtue of his minimal contact with the state under Massachusetts G.L. c. 223A, § 3(f), the "long-arm" statute.

G.L. c. 175, § 151 provides that foreign fidelity and corporate insurance companies must file a power of attorney appointing the commissioner of insurance lawful attorney upon whom legal process may be served. This statute will not affect Rule 65.1; the rule merely permits the party proceeding against the surety to "serve" the surety by filing the necessary papers with the clerk.

The Reporters take the position that the notice which must be mailed by the clerk of court to the surety under Rule 65.1 need not comply with the requirements of seal and teste prescribed by Part II, c. 6, art. 5 of the Massachusetts Constitution. The enforcement of liability against the surety is not a new action. While notice may be the means for bringing a defendant into court for all purposes connected with an already commenced action, an order of notice is not a writ within the meaning of Part II, c. 6, art. 5 of the Massachusetts Constitution. Taplin v. Atwater, 297 Mass. 302, 306, 8 N.E.2d 786, 788 (1937).